# Third District Court of Appeal

State of Florida

Opinion filed December 9, 2015.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D15-58

Lower Tribunal No. 09-79235

________________



### Deutsche Bank National Trust Company on behalf of LSF MRA

Pass-Through Trust

, Appellant,

vs.



### Estrella Perez, et al.

, Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Marvin H.

Gillman, Senior Judge.

Burr & Forman, LLP, and Brendan A. Sweeney and Douglas J. Stamm,

(Fort Lauderdale)

, for appellant.

Thomas P. Murphy ; Jay Levy, for appellees.

Before SUAREZ, C.J., and WELLS and SCALES, JJ.

WELLS, Judge.Deutsche Bank National Trust Company on behalf of LSF MRA PassThrough Trust appeals from an order dismissing this mortgage foreclosure action

because the bank failed to provide the name of the corporate representative who

would testify at trial. Because no prejudice was suggested much less demonstrated

below as a consequence of this failure, and because no basis exists to impose such

a harsh sanction, we reverse and remand this matter for trial.

This action commenced on October 28, 2009, and was set for trial on seven

different occasions over the next five years. On October 21, 2014, this matter was

set for trial during the week of December 8, 2014.

The order setting this matter for trial provided that no later than fifteen days

before the date of the scheduled trial the parties were to “furnish opposing counsel

with a written list containing the individual proper names and addresses of all nonexpert witnesses

. . . intended to be called at trial.” The order further provided that

failure to “strictly comply” might result in sanctions including limiting proof or

witnesses, and that only those witnesses listed would be allowed to testify.

On November 18 and December 4, 2014, the bank filed witness and exhibit

lists wherein it listed several non-expert witnesses including the “Corporate

representative of Vericrest, Financial, Inc.

. . . , servicer for Deutsche Bank

. . . .”

No specific name for the corporate representative was provided. Perez filed no

pretrial witness or exhibit list.

2The case proceeded to trial on December 9, 2014. When the bank

announced that it was calling Scott Logue as its corporate representative, the

defense objected arguing that because the bank had failed to specifically name Mr.

Logue as its representative he could not be called to testify. In response, the bank

explained that a specific name had not been provided because it did not know who

would be available to testify at trial and that this failure was not for any improper

purpose or harmful. The bank further suggested that because no prejudice had

been demonstrated it should either be permitted to proceed or the matter should be

continued to mitigate any potential harm. The court below summarily rejected

these arguments, stating that it was unconcerned about prejudice to Perez and was

punishing the bank for failing to strictly comply with its pre-trial order:

MR. SWEENEY [for the bank]: Judge, what’s the prejudice to

Ms. Perez? She’s incarcerated. What’s the prejudice to the land

trust? They are probably renting the property out.

THE COURT: I’m not interested in prejudice anymore,

notwithstanding the District Court of Appeals conversations about

prejudice all the time. If you don’t follow the Court orders, you have

consequences. The consequences are you don’t have a witness. The

consequences of not having a witness is you might not be able to

prove your case. If you can’t prove your case, you get a voluntary

dismissal or involuntary dismissal. We are disposing of cases. You

all have the responsibility of presenting cases to the Court. Your

client filed a lawsuit and put it into the jurisdiction of the Court.

When you put it into the bowels of the Court, God knows what is

going to happen. It’s like making sausage. That’s what happens in

these cases.

3The bank’s sole witness was stricken, and relying upon its inherent authority

to enforce its orders, the court below granted an involuntary dismissal.

We reverse that order first because the court below failed to consider those

factors set forth by the Florida Supreme Court in Binger v. King Pest Control

, 401

So. 2d 1310, 1314 (Fla. 1981), for determining whether the testimony of an

undisclosed witness should be excluded. As that court stated, while a trial court

has the authority to exclude the testimony of an undisclosed witness, the decision

to do so turns in large measure on demonstrated prejudice to the opposing party, as

well as the ability to avoid any resulting prejudice and considerations relating to

the orderly administration of justice:

[A] trial court can properly exclude the testimony of a witness whose

name has not been disclosed in accordance with a pretrial order. The

discretion to do so must not be exercised blindly, however, and should

be guided largely by a determination as to whether use of the

undisclosed witness will prejudice the objecting party. Prejudice in

this sense refers to the surprise in fact of the objecting party, and it is

not dependent on the adverse nature of the testimony. Other factors

which may enter into the trial court’s exercise of discretion are: (i) the

objecting party’s ability to cure the prejudice or, similarly, his

independent knowledge of the existence of the witness; (ii) the calling

party’s possible intentional, or bad faith, noncompliance with the

pretrial order; and (iii) the possible disruption of the orderly and

efficient trial of the case (or other cases). If after considering these

factors, and any others that are relevant, the trial court concludes that

use of the undisclosed witness will not substantially endanger the

fairness of the proceeding, the pretrial order mandating disclosure

should be modified and the witness should be allowed to testify.

Binger

, 401 So. 2d at 1313-14 (footnotes omitted).

4Here, the trial court incorrectly refused to even consider whether Perez

would be prejudiced by allowing the bank’s witness to testify at trial. See Allstate

Prop & Cas. Ins. Co. v. Lewis

, 14 So. 3d 1230, 1234 (Fla. 1st DCA 2009) (“The

supreme court’s opinion in Binger is clear that testimony should be excluded only

after the trial court determines it is prejudicial to the opposing party.”); Lugo v.

Fla. E. Coast Ry. Co.

, 487 So. 2d 321, 322, 323-24 (Fla. 3d DCA 1985) (finding

that the trial court’s exclusion of the appellant’s expert witness for failure to

strictly comply with the pre-trial order directing the parties to provide the “names

and addresses of all expert witnesses which they intended to call” was

“indefensible” where the court failed to consider the Binger factors “which should

have entered into its exercise of discretion”). The record in this case also fails to

demonstrate any prejudice. While the bank did not provide the name of the

specific corporate representative it intended to call, Perez was on notice that the

bank intended to call a corporate representative who would testify as to the

relevant documents that had been produced during discovery. And there is no

suggestion that Perez sought to either to secure the identity of the bank’s witness or

to take that person’s deposition before trial. In short, there was no “showing of

surprise in fact as to the existence of a witness or as to how the witness would

testify.” Lugo

, 487 So. 2d at 324; Casa de Alabanza v. Bus Service, Inc.

, 669 So.

2d 338, 339 (Fla. 3d DCA 1996) (finding the trial court erred in prohibiting a

5corporate representative from testifying where, although the corporate entity

“failed to list the name of any witness in particular that it intended to call at trial in

the pre-trial witness catalog,” the appellant did indicate in its witness list that a

representative of the appellant would be called to testify at trial); see also Pascual

v. Dozier

, 771 So. 2d 552, 554 (Fla. 3d DCA 2000) (“[I]t is error to strike a

relevant witness where the opposing party is aware of the proposed testimony.”).

Because prejudice was neither considered nor demonstrated, the bank’s witness

should not have been stricken. Nor should the action have been dismissed.

Secondly, while we appreciate the lower court’s reluctance to grant a

continuance in light of the age of this action and recognize the trial court’s inherent

authority to manage its docket, we nevertheless find, as we did in Pascual

, that “a

trial court should exercise caution when the witness sought to be excluded is a

party’s only witness or one of the party’s most important witnesses because if the

witness is stricken, that party will be left unable to present evidence to support his

or her theory of the case.” Pascual

, 771 So. 2d at 554; see also Progressive

Consumers Ins. Co. v. DECO Natural Stone, Inc.

, 827 So. 2d 336, 336 (Fla. 3d

DCA 2002) (finding the trial court abused its discretion in striking the plaintiff’s

primary witness, resulting in a directed verdict for the defendant, where the failure

to timely provide a formal witness list was non-prejudicial). In sum, imposing the

legal equivalent of the death penalty in this case for the instant infraction,

6“punished the appellant far out of proportion to the magnitude of the alleged

offense.” Id.

Accordingly, we reverse the order under review and remand for trial.

Reversed and remanded.

7